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2016 DIGILAW 445 (ORI)

Kuni Mohanty v. Upendra Barik

2016-06-22

D.DASH

body2016
JUDGMENT : The appellant in this appeal filed under section 100, read with Order-21, Rule-103 of the Code of Civil Procedure has called in question the order passed by the learned District Judge, Bhadrak in R.F.A. No.47 of 2011 confirming the order passed by the learned Civil Judge (Sr. Division), Bhadrak in I.A. No.308 of 2011, in the matter of an application under Order-21, Rule-99 of the Code arising out of Execution Case No.39 of 2003, which has been filed for executing the decree passed in Title Suit No.87 of 2000. 2. The essential facts from the beginning in nutshell are:- The respondent no.1 as the plaintiff had filed the suit, i.e., T.S. No.87 of 2000 in the Court of the learned Civil Judge (Sr. Division), Bhadrak against the respondent nos.2 to 9 arraigning them as the defendants. The relief that had been claimed therein was for issuance of a permanent injunction restraining the defendants from entering upon the suit land and from digging earth therefrom in order to make pucca construction. The suit stood decreed in part on contest with cost. The defendants were permanently restrained from digging earth from the suit land in order to make pucca construction. As on 13.09.2003, the defendants/ judgment-debtors dug earth and put up a house within a week, the plaintiff/ decree-holder filed an application under Order-21, Rule-32 of the Code for execution of the decree for permanent injunction. This was numbered as Execution Case No.39 of 2003. The plaintiff-decree holder prayed for removal of said house constructed in disobedience to the decree for injunction after due measurement through survey knowing Commissioner and to put the defendant/judgment debtors in Civil Prison for such disobedience besides attachment of their property. The defendant/judgment-debtors appeared and filed their objection denying the allegations. This necessitated an enquiry to be undertaken. After enquiry and hearing, the Executing Court found on fact that the defendant/judgment-debtors have encroached upon a portion of the suit land and constructed a house over the same during the period. Thus, finding the need of removal of the said construction being made in disobedience to the order of injunction as prayed for, the Executing Court directed its demolition at the cost of the defendant/judgment-debtors. Thus, finding the need of removal of the said construction being made in disobedience to the order of injunction as prayed for, the Executing Court directed its demolition at the cost of the defendant/judgment-debtors. The defendant/judgment debtors then sought for interference with the said order by this Court in exercise of the power under Article 227 of the Constitution of India by filing W.P.(C) No.5214 of 2008. This Court by order dated 03.08.2010, finding no error apparent on the face of the said order and holding the Executing Court to have rightly allowed the application of the plaintiff/decree holder for execution of the decree in passing necessary order, dismissed the writ application. 3. The present appellant, claiming to be a third party and a stranger to the suit, on 20.05.2011 filed an application under Order-21, Rule-99 of the Code in the said execution proceeding. It is stated therein that she is a member of the family of the defendant/judgment debtors and she has succeeded to the interest of her husband over the suit property. It is stated that in the family partition and as per the registered deed of partition dated 15.04.1964, land measuring Ac.0.02 dec. had been allotted to her father-in-law Bimbadhar. However, in the major settlement it had been wrongly recorded in the name of predecessor-in-interest of the plaintiff/ decree-holder, i.e., Nidhi Barik. It is alleged that said erroneous recording has been taken advantage of and, the plaintiff/decree-holder having filed Title Suit No.87 of 2000 without making her, who the said third party/ petitioner and the appellant here or her husband a party, has thus obtained the decree. So, it is said that the said proceeding having been taken behind her back, she is not bound by the said decree and her claim need be adjudicated upon. It is further stated that on 18.05.2011 afternoon, the plaintiff/decree-holder with the help of others has driven her and her children from their ancestral pucca house which was standing on a portion of the suit land and other land as also they have removed the household articles. When this was informed at the police station, the matter came to be known that the plaintiff/ decree-holder has been armed with a decree in his favour in respect of the suit property. When this was informed at the police station, the matter came to be known that the plaintiff/ decree-holder has been armed with a decree in his favour in respect of the suit property. It is also stated that the other defendant/ judgment-debtors, although belong to the same family yet as they were not pulling on well with her, had never informed her about the suit and its result. The prayer in the petition is for a decision afresh in that Execution Case so far as the claim over the subject matter of the proceeding as advanced. 4. The Executing Court after hearing rejected the said petition. This order of rejection of the application under Order-21, Rule-99 of the Code was challenged by filing an appeal in the Court of the District Judge numbered as F.A.O. No.42 of 2011. The learned District Judge refused to admit the appeal holding the order as not appealable. So, that order of the learned District Judge was challenged by the present appellant who being the third party-petitioner felt highly aggrieved by it in view of the rejection of her petition by filing W.P.(C) No.18736 of 2011, seeking interference with the same in exercise of the jurisdiction of this Court under Article-227 of the Constitution of India. This Court finding that appeal lies against the order of rejection of the application under Order 21 rule 99 of the code directed the learned District Judge, Bhadrak to treat the F.A.O. as regular appeal subject to the question of limitation and court fees and dispose of the same in accordance with law. The learned District Judge after hearing has again confirmed the order of the Executing Court passed by rejecting the application under Order-21 Rule-99 of the Code filed by the third party petitioner, i.e., the present appellant. That is how she has now filed this second appeal. 5. The appeal has been admitted on the following substantial questions of law: “1. Whether the courts below are correct in dismissing the application and the appeal filed by the plaintiff-appellant before admitting the application and giving chances to lead evidence though the provision as provided in Order 21 Rule 101 C.P.C. mandates that such application shall be tried like a suit? 2. Whether the courts below are correct in dismissing the application and the appeal filed by the plaintiff-appellant before admitting the application and giving chances to lead evidence though the provision as provided in Order 21 Rule 101 C.P.C. mandates that such application shall be tried like a suit? 2. Whether the lower appellate court is correct in dismissing the appeal having held that the appellant did not lead any evidence particularly when the application under Order 21 Rule 99 C.P.C. was rejected by the trial court on the day it was filed and the appellant had no opportunity to lead evidence, exhibit documents in support of her title? 3. Whether the court below acted in conformity with law rejecting the application under Order 21 Rule 99 C.P.C. before it’s admission on the same day it was filed, thereby the appellant is debarred from leading any evidence?” 6. Learned counsel for the appellant submits that in the matter of application under Order-21 Rule-99 of the Code which has been field by the present appellant as the third party/petitioner before the executing court neither the executing court nor the lower appellate court have followed the procedures prescribed in the Code so as to decide the matter as if a suit in either finally accepting the claim of the third party/petitioner or negating it. Placing the relevant rules of order-21 of the Code which would be placed in course of discussion to follow, he thus contends that the courts below have not at all kept in view those provisions as contained in the rules and thus having gone to dispose of the matter, the orders are liable to be set aside and the matter is required to be remitted to the Executing Court for fresh disposal in accordance with law. 7. Learned counsel for the respondents contends that in view of the nature of claim laid by the third party/petitioner the courts below cannot be said to have committed any error by not scrupulously following the procedures prescribed in the rules. Thus, he urges for dismissal of the appeal by answering the above substantial questions of law against the appellant. 8. Going to address the rival submission in answering the substantial questions of law as formulated in the case few more facts are required to be stated, may be at the cost of repetition. Thus, he urges for dismissal of the appeal by answering the above substantial questions of law against the appellant. 8. Going to address the rival submission in answering the substantial questions of law as formulated in the case few more facts are required to be stated, may be at the cost of repetition. The decree passed in T.S. No.87 of 2000 reads as under: “The defendants are permanently restrained from digging earth from the suit land in order to make pucca construction.” The above decree is put to execution resorting the provision of Order-21, Rule-32 of the Code. 9. The plaintiff/decree-holder filed the petition before the Executing Court that on 13.09.2003, the defendant/judgment-debtors dug earth from the said land and constructed one house over the said land within seven days therefrom. It is stated that the house in question stands on a portion of the suit land. This construction made after the decree is said to be causing inconvenience to the plaintiff/decree-holder as the road to the house which has thus been narrowed down at the point and this is said to have been done in disobedience to the decree of injunction. Similarly, a prayer was made for appointment of Commissioner in doing the needful for such removal of the encroachment and by demolition of the structure, in further seeking an order of detention of the defendant/judgment-debtors in civil prison and attachment of their land for failure on their part to pay the litigation expenses as decreed. The defendants/judgment-debtors pleaded all those petition averments to be fabricated and concocted. It is stated that the suit land still remains in that very condition as it was prior to the institution of the suit and there has been no change or development in between when the parties have been using the suit land as it was being used before. 10. Such rival case being projected by the parties, the Executing Court took up an enquiry by recording evidence from both the sides. The following is the final conclusion of the Executing Court: “From the aforesaid evidence on record, I find opp. Party witness no.2 has no knowledge regarding the suit land. Evidence of P.W.1 finds corroboration in the evidence of P.W.2 with regard to alleged encroachment and construction. P.W.3 who claims to have measured the suit land has not mentioned the total area of the same in his report. Party witness no.2 has no knowledge regarding the suit land. Evidence of P.W.1 finds corroboration in the evidence of P.W.2 with regard to alleged encroachment and construction. P.W.3 who claims to have measured the suit land has not mentioned the total area of the same in his report. He has not even cared to measure the suit plot no.8605 over which the ancestral dwelling house of judgment debtors situate. He has not cared to use tri-junction points available near the suit plot as fixed points giving rise to suspicion in the mind of the Court with regard to correctness of his measurement. In the premises rejecting his report, on the residue of evidence (believing evidence of P.Ws.1 and 2) and admission in objection, I hold the judgment debtors have encroached a portion of the suit land and constructed houses over the same in between 7 days from 13.09.2003. (Vol.73 (1992) C.L.T. 187 [(Kunjabihari Mohanty (and after him) Subash Ch. Mohanty and another Vrs. Kishore Chandra Jagdev Ray and others followed]. Said construction accordingly requires demolition in evicting judgment debtors at their cost for judgment debtors not obeying the permanent injunction issued against them as per the judgment in the original suit. Further cost of the suit not being paid, the ‘ga’ schedule movable property requires to be attached for auction of the same to meet the said expenses in satisfaction of the decree.” The order that has followed the above noted conclusion reads as under: “The execution proceeding is allowed on contest against the judgment debtors with cost. The house constructed by the judgment debtors on suit plot no.7604 under Khata no.818 be demolished at the cost of the judgment debtors and the movable properties described in schedule ‘Ga’ of the petition be attached for auction of the same to meet the expenses in satisfaction of the decree. The decree holder is directed to take necessary steps fixing 16.04.07 for the purpose and further orders.” 11. As already stated the above order having been questioned by the defendant/ judgment-debtors by filing the writ application, this Court has refused to interfere with the same. Thus, the above order so far as the defendant/judgment-debtors are concerned has reached its finality and the decree very much stands for due execution against them. As already stated the above order having been questioned by the defendant/ judgment-debtors by filing the writ application, this Court has refused to interfere with the same. Thus, the above order so far as the defendant/judgment-debtors are concerned has reached its finality and the decree very much stands for due execution against them. Later this present appellant who is the third party petitioner has leveled the allegation that she and her children have been driven out of the house on 18.05.2011 afternoon and thus have been dispossessed. This petition has been filed on 20.05.2011.The Executing Court as is seen from the order dated 21.05.2011 having noted the averments of the petition and then having quoted the order of this Court in W.P.(C) No.5214 of 2008 dated 03.08.2010 has rejected the said petition. The lower appellate Court after the direction of this Court for hearing it as a regular appeal has taken note of the fact that the appellant, who is the third party/ petitioner has not filed a scrap of paper in support of her claim over the land measuring Ac.0.02 dec. of C.S. Plot No.444 to have fallen in the share of her father-in-law in a family partition when the record position remains that the land in the major settlement standing recorded in the name of the plaintiff/decree-holder. The above aspect has practically weighed in the mind of the lower appellate Court in dismissing the appeal. Although some observation has been made which on their face appears to be contrary to the settled position of law, yet for the purpose here we are not very much required to take note of those. Therefore, this Court although expresses dissatisfaction on said observations especially as at sub para-3 of para 9 of the judgment having the tendency to override the view rendered by this Court in W.P.(C) No. 18736 of 2011 running against the judicial propriety and discipline, yet no more feels the necessity to further elaborate the same at this stage. 12. Order-21, rule-32 of the Code concerns with the execution of a decree for an injunction. The various clauses of rule 32 i.e. 1, 2 and 3 are but indirect methods devised to enforce compliance of injunction decrees, each being an intermediate step for further action. From this it cannot, be concluded that execution of decree for prohibitory injunction should end there. The various clauses of rule 32 i.e. 1, 2 and 3 are but indirect methods devised to enforce compliance of injunction decrees, each being an intermediate step for further action. From this it cannot, be concluded that execution of decree for prohibitory injunction should end there. When the judgment-debtor commits gross violation of the decree so as to nullify the very decree, the execution cannot be so limited driving the decree-holder to file a fresh suit. Such an interpretation cannot be entertained and it would amount to take rather a too technical and narrow view of the matter. The law has always expressed its dislike for multiplicity of proceedings and has leaned in favour of an interpretation which would prevent multiplicity of proceedings rather than the one which will generate it. The significant words used there are 'the court may' in lieu of “or in addition to all or any of the processes aforesaid i.e. attachment of property or detention in civil prison”. This expression enlarges the scope of authority of the court to execute the decree in the manner provided in sub-rule “(1) or (2)” and also under sub-rule (5). The rule also empowers the court to 'direct that the act required to be done' may be done so far as practicable by the decree-holder etc. A person disobeys an injunction not only if he fails to perform an act which he is directed to do but also when, he does an act which he is prohibited from doing. There is as much disobedience in the one case as in the other. Thus the Court has the power to execute the decree by getting the obstructions removed and obtaining a fresh decree for the purpose is not necessary. The explanation introduced to sub-rule-5 of the said rule clearly reveals the anxiety of the Legislature to ensure that the Executing Court is able to enforce obedience not only of decrees for mandatory injunction but also decrees for prohibitory injunction. 13. In the instant case, the allegation is that some construction has been made over the land in disobedience to the decree of injunction. So, very rightly as is seen, the Executing Court upon receipt of the application inviting objection from the defendant/ judgment-debtors has sat over an inquiry to find out the truthfulness of such allegations or otherwise. 13. In the instant case, the allegation is that some construction has been made over the land in disobedience to the decree of injunction. So, very rightly as is seen, the Executing Court upon receipt of the application inviting objection from the defendant/ judgment-debtors has sat over an inquiry to find out the truthfulness of such allegations or otherwise. Embarking upon a detail inquiry into the allegation as aforementioned, the Executing Court has passed the order as quoted above. This having been challenged at the instance of the defendant/ judgment-debtors, the move has yielded no fruitful result. So in so far as the defendants/ judgment-debtors are concerned, the matter has come to an end. 14. Now the third party-petitioner, who is the appellant, here complains of illegal dispossession in the hands of plaintiff-decree holders not on the strength of any order passed in the execution case filed for execution of the original decree and of in course of execution of the said decree. Although she claims to be a member of the family of the defendant/ judgment-debtors, she asserts that such property had fallen to the share of her father-in-law and has been erroneously recorded in the name of the plaintiff-decree holder in the major settlement. She asserts that such allotment of the land in the share of her father-in-law was made in the family partition, which although was known to the defendant/ judgment-debtors, they had never informed her at any time either during the suit or even during the execution case or thereafter. However, when she was dispossessed, on inquiry she came to know all about it. 15. Learned counsel for the appellant submits that the petition having been field under order-21, rule-99 of the Code complaining dispossession in accordance with sub-rule 2 of the said rule, the Court ought to have proceeded for adjudication upon the application in accordance with the provision of order-21, rule-101 of the Code by going to decide all questions relating to right, title and interest over the property arising between the parties, the present plaintiff-decree-holder and the third party-petitioner, i.e., the appellant as no further suit is maintainable and thereafter to proceed accordingly in passing the final order in terms of rule-100. The above submission is countered by the learned counsel for the respondent that every application filed before an Executing Court merely being nomenclature as one under Order-21, Rule-99 of the Code, are not so required to be adjudicated upon as if a suit unless the Court comes to a prima facie satisfaction on the genuineness of such claim of independent right, title or interest of the third party-petitioner in the property so that the Court can say that those are arising between the parties to the proceeding on such application so as to be adjudicated upon. 16. Provision of Order-21, Rule-99 reads as under: “[99. Dispossession by decree-holder or purchaser – (1) Where any person other than the judgment-debtor is dispossessed of immovable property by the holder of a decree for the possession of such property or where such property has been sold in execution of a decree by the purchaser thereof, he may make an application to the Court complaining of such dispossession. (2) Where any such application is made, the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained]” The consequential order after final adjudication that the Executing Court has to pass on allowing the application is provided in rule-100. Rule-101 provides as to what questions are to be determined being relevant to the adjudication of the application and shall be determined by the court. 17. In case of Silverline Forum Pvt. Ltd. Vrs. Rajiv Trust & Anr., (1998) 3 SCC 723 , the Apex Court of course while considering the matter concerning the resistance made by the third party to the decree under execution first has held as follows: "At the outset, we may observe that it is difficult to agree with the High Court that resistance or obstructions made by a third party to the decree of execution cannot be gone into under order 21, rule 97 of the Code. Rules 97 to 106 in order 21 of the Code are subsumed under the caption "Resistance to delivery of possession to decree-holder or purchaser". Rules 97 to 106 in order 21 of the Code are subsumed under the caption "Resistance to delivery of possession to decree-holder or purchaser". Those rules are intended to deal with every sort of resistance or obstructions offered by any person, rule 97 specifically provides that when the holder of a decree for possession of immovable property is resisted or obstructed by 'any person' in obtaining possession of the property such decree-holder has to make an application complaining of the resistance or obstruction. Sub-rule (2) makes it incumbent on the Court to proceed to adjudicate upon such complaint in accordance with the procedure laid down." 18. It has also been held in case of Brahmdeo Chaudhary Vrs. Rishikesh Prasad Jaiswal and another; AIR 1997 S.C. 856 that this view would result in patent breach of principle of natural justice as the obstructionist who alleges to have any independent right, title and interest in the decretal property and who is admittedly not a party to the decree even though making a grievance right in time before the warrant for execution is actually executed, would fold off the gates and his grievance would not be considered or heard on merits and he would be thrown off lock, stock and barrel by use of police force by the decree holder. It has been further observed by the Supreme Court that a stranger to the decree who claims an independent right, title and interest in the decretal property can offer his resistance before getting actually dispossessed. He can equally agitate his grievance and claim for adjudication of his independent right, title and interest in the decretal property even after losing possession as per order 21 rule 99. Order 21 rule 97 deals with the stage which is prior to the actual execution of the decree for possession wherein the grievance of the obstructionist can be adjudicated upon before actual delivery of possession to the decree-holder. Order 21, rule 99 on the other hand deals with the subsequent stage in the execution proceedings where a stranger claiming any right, title and interest in the decretal property might have got actually dispossessed and claims restoration of possession on adjudication of his independent right, title and interest dehors the interest of the judgment-debtor. Order 21, rule 99 on the other hand deals with the subsequent stage in the execution proceedings where a stranger claiming any right, title and interest in the decretal property might have got actually dispossessed and claims restoration of possession on adjudication of his independent right, title and interest dehors the interest of the judgment-debtor. Both these types of enquiries in connection with the right, title and interest of a stranger to the decree are clearly contemplated by the scheme of order 21 and it is not as if that such a stranger to the decree can come in the picture only at the final stage after losing the possession and not before it even if he is vigilant enough to raise his objection and obstruction before the warrant for possession gets actually executed against him. The provisions of order 21 lay down a complete code for resolving all disputes pertaining to execution of a decree for possession obtained by a decree holder and whose attempt of executing the said decree meet with rough weather. Once resistance is offered by a purported stranger to the decree and which comes to be noted by the Executing Court as well as by the decree holder, the remedy available to the decree holder against such an obstructionist, it only order 21, rule 97 sub-rule (1) and he cannot by-pass such obstruction and insist on re-issuance of warrant for possession under order 21, rule 35 with the help of police force, as that course would amount to bypassing and circumventing the procedure laid down under order 21, rule 97 in connection with removal of obstruction of purported strangers to the decree. Once such an obstruction in on the record of the Executing Court it is difficult to appreciate how the Executing Court can tell such obstructionist that he must first lose possession and then only his remedy is to move an application under order 21, rule 99, CPC and pray for restoration of possession. As stated earlier, such an interpretation would result in patent irregularities and violation of principles of natural justice and equity. 19. As stated earlier, such an interpretation would result in patent irregularities and violation of principles of natural justice and equity. 19. In case of Shreenath and another v. Rajesh and others; A.I.R. 1998 S.C. 1827 while overruling the decision of the Full Bench of Madhya Pradesh High Court reported in AIR 1980 MP 146 , the Apex Court, interpreting the words "any person" held that it includes all persons resisting the delivery of the possession, claiming right in the property even those not bound by the decree, including tenants or other persons claiming right on their own, as well a stranger. 20. However, in that case of Silverline Forum Pvt. Ltd. (supra) at paragraph-12, it has been held that all questions arising between the parties to a proceeding on an application under rule 97 would envelop only such questions as would legally arise for determination between those parties. In other words, the Court is not obliged to determine a question merely because the resistor raised it. The questions which the Executing Court is obliged to determine under rule 101, must possess two adjuncts. First is that such questions should have legally arisen between the parties and the second is, such questions must be relevant for consideration and determination between the parties, e.g. if the obstructor admits that he is a transferee pendente lite, it is not necessary to determine a question raised by him that he was unaware of the litigation when he purchased the property. Similarly, a third party, who questions the validity of a transfer made by a decree-holder to an assignee, cannot claim that the question regarding its validity should be decided during execution proceedings. Hence, it is necessary that the questions raised by the resistor or the obstructor must legally arise between him and the decree-holder. It has also been said that the adjudication mentioned therein need not necessarily be involved a detail inquiry or collection of the evidence, the Court can make an adjudication on admitted facts or even on averments made in the resistor’s petition. 21. At this juncture, it is also apt and proper to keep in mind the observation of the Hon’ble Apex Court in case of N.S.S. Narayana Sarma & Ors. Vrs. 21. At this juncture, it is also apt and proper to keep in mind the observation of the Hon’ble Apex Court in case of N.S.S. Narayana Sarma & Ors. Vrs. M/s. Goldstone Exports (P) Ltd. & Ors., (2002) 1 SCC 662 covering the subject which runs as under: “Rules 97 to 101 of order 21 contain the provisions enabling the executing court to deal with a situation when a decree holder entitled to possession of the property encounters obstruction from “any person”. From the provisions in these rules which have been quoted earlier the scheme is clear that the legislature has vested wide powers in the executing court to deal with “all issues” relating to such matters. It is a general impression prevailing amongst the litigant public that difficulties of a litigant are by no means over on his getting a decree for immovable property in his favour. Indeed, his difficulties in real and practical sense, arise after getting the decree. Presumably, to tackle such a situation and to allay the apprehension in the minds of litigant public that it takes years and years for the decree holder to enjoy fruits of the decree, the legislature made drastic amendments in provisions in the aforementioned Rules, particularly, the provision in rule 101 in which it is categorically declared that all questions including questions relating to right, title or interest in the property arising between the parties to a proceeding on an application under rule 97 or rule 99 or their representatives, and relevant to the adjudication of the application shall be determined by the Court dealing with the application and not by a separate suit and for this purpose, the Court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions. On a fair reading of the rule it is manifest that the legislature has enacted the provision with a view to remove, as far as possible, technical objections to an application filed by the aggrieved party whether he is the decree holder or any other person in possession of the immovable property under execution and has vested the power in the executing court to deal with all questions arising in the matter irrespective of whether the Court otherwise has jurisdiction to entertain a dispute of the nature. This clear statutory mandate and the object and purpose of the provisions should not be lost sight of by the Courts seized of an execution proceeding. The Court cannot shirk its responsibility by skirting the relevant issues arising in the case. But while making adjudication, the court is obliged to determine only such question as may be arising between the parties to a proceeding on such complaint and that such questions must be relevant to the adjudication of the complaint. 22. In the light of the above settled law, the facts and circumstances of the case in hand now stand for due examination. Here the decree is for injunction whereas if we go to the language employed in rule 99, it is seen that the same refers to dispossession of immovable property of any person other than the judgment debtor over the immovable property at the hands of the holder of a decree for the possession of such property or where such property has been sold in execution of the decree by the purchaser thereof. So, a question arises whether such an application complaining dispossession in course of execution of a decree for injunction alleging its violation by the judgment-debtor in disobedience of the said decree of injunction in removing such obstruction, is maintainable. The answer in my considered view has to be in the affirmative that when a decree for injunction is sought to be executed resorting to the provision of sub-rule 5 of rule 32 of order 21 and in the process, a person is threatened with dispossession or is dispossessed, he has a right to complain in accordance with the provisions of the rules contained from rule 97 onwards and he cannot be shown the door of exit merely on such technical ground that it being not the execution of a decree for possession but a decree for injunction sought to be executed, the claim is not entertainable at all. Such a narrow construction in my considered view will run contrary to the intention of the Legislature in enacting the provision of law, i.e., order 21 rule 99 of the Code as also the law laid down by the Apex Court in all those cases (supra). Such a narrow construction in my considered view will run contrary to the intention of the Legislature in enacting the provision of law, i.e., order 21 rule 99 of the Code as also the law laid down by the Apex Court in all those cases (supra). Moreover, when the decree for injunction is sought to be enforced by resorting the provision of order 21 rule 32 (5) of the Code, the same for the purpose has to be taken to be a decree for possession so far as the third party/claimant is concerned. 23. The next question falls for consideration that here the suit had been filed against the defendant/ judgment debtors complaining highhanded action in interfering with the right, title, interest and possession of the plaintiff-decree holder. The defendant/ judgment-debtors had also taken a defence that such recording of the suit land in the name of Nidhi in the major settlement proceeding is erroneous. The trial court had framed an issue with regard to the plaintiff’s right, title, interest and possession finding it to be necessary to decide the question of entitlement of the plaintiff to the relief of injunction. This present third party-petitioner and the appellant here in this appeal is admittedly a member of the said family of the defendants. It does not prima facie appear to be a case that the decree had been obtained by collusion and no such material surfaces on record. Rather, it is seen that there was tooth and nail contest in the suit as also thereafter in the execution proceeding. The trial court has held that the suit land is essential for pathway of the defendant/ judgment-debtors and that is the reason by the decree the defendant/judgment debtors were only restrained from changing the nature and character of the suit land directing that they be permanently restrained from digging earth from the suit land in order to make any pucca construction. During the execution upon enquiry, the Executing Court has found the defendant/judgment debtors to have encroached upon a portion of the suit land from 13.09.2003 onwards and constructed the house. Now, the claim of the present third party-petitioner, i.e., the appellant is that she has been dispossessed from the house standing over the suit land on 18.05.2011 and the suit land had fallen to her father-in-law’s share. Now, the claim of the present third party-petitioner, i.e., the appellant is that she has been dispossessed from the house standing over the suit land on 18.05.2011 and the suit land had fallen to her father-in-law’s share. However, not a scrap of paper has been filed to take a prima facie view in support of the said claim as advanced or even possession. In such state of affair, the finding of the Executing Court upon enquiry made before hand rather prima facie stands to negate such assertions of the third party-petitioner. When the provisions have been made to take utmost care that innocent persons having their genuine and independent right and claim over their immovable property are not dispossessed at the hands of the unscrupulous decree holders or through a collusive decree by execution of the same and thus are not to be driven for a separate suit, their said claim standing to be adjudicated by the Executing Court on an application as if a suit, at the same time, the said Court certainly has also the duty to see that a legally valid decree is not pushed to uncertainty for its execution by way of any frivolous petition being made resorting to the provision as contained in rule 97 onwards for being as such used as tools to thwart a valid decree’s lawful execution running contrary to the legislative intention in enacting those provisions in short that those provisions are not misused to deprive a decree holder to run from pillar to post without getting the fruit of the decree. This aspect of the matter in my considered view cannot be lost sight of in entertaining such petitions in the execution proceeding. There should be presentation of a claim legally cognizable showing prima facie satisfaction that the same stands for adjudication and determination of the questions raised therein concerning the right, title and interest etc. between the parties to the said proceeding in accordance with the rules as provided. In the absence of the same and the petitioner having not placed any such material in support of her claim of independent right over the property giving rise to a prima facie satisfaction, in my considered view, the Executing Court was under no obligation to undertake any further adjudication. In the absence of the same and the petitioner having not placed any such material in support of her claim of independent right over the property giving rise to a prima facie satisfaction, in my considered view, the Executing Court was under no obligation to undertake any further adjudication. The third party/petitioner when chooses not to prima facie satisfy as regards his independent right and the basis of the claim, the executing court can obviate the necessity of proceeding further in adherence to the laid down rules and has all the power to dismiss the petition even at the threshold. Rule 101 of order 21 of the Code reads that all questions (including questions relating to right, title or interest in the property) arising between the parties to a proceeding on an application under rule 97 or rule 99 or their representatives and relevant to the adjudication of the application, shall be determined by the Court dealing with the application and not by a separate suit and for this purpose, the Court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions. This being read with the provision of order 21 rule 103 of the Code that upon adjudication of any application under rule 98 and rule 100, the order made thereon shall have the same force and be subject to the same conditions as to an appeal or otherwise as if it were a decree, clearly leads to say that the application filed for the purpose, must have the minimum trappings of a plaint in adherence to the provisions of Order-7 of the Code. These are all for the prima facie satisfaction of the Court and stand as the mandatory requirements for entertainment of the claim so as to proceed further as per the rules. Thus in this case, the ultimate result of dismissal of the application is not found to be a flawed one calling for interference. 24. The aforesaid discussion and reasons accordingly provide answers to the substantial questions as indicated above and those run against the appellant. 25. Resultantly, the appeal stands dismissed with cost.